Tuan and Linh were friends and classmates in Hồ Chí Minh City, Vietnam. Soon after graduation, Tuan immigrated with his parents to the United States and Linh started working for an accounting firm in Vietnam.

Busy working on their careers, a few years went by without any contact between them. One night while checking his Facebook, Tuan got a friend request from an old friend… It was Linh.

Eventually, their relationship grew and Tuan traveled back to Vietnam to spend some quality time with Linh. Everything felt so perfect when they were together and Tuan ended up proposing to Linh on the beach in Nha Trang. Linh felt the same and happily agreed to be bound to him in marriage.

The couple agreed that it would be best if Linh joined Tuan in the US with a Fiancee K1 Visa rather than Tuan moving back to Vietnam. Tuan also convinced Linh that it would be best if they got married in the States because he wanted her to meet his family before they got married.

Soon after arriving from his amazing trip to Vietnam, Tuan came to see me. I congratulated and told him that bringing his fiancee here on a Fiancee K1 Visa could be understood as a three-step process. Careful planning, analysis, and document preparation in all three steps in the Fiancee K1 Visa process is essential.

Step 1: Tuan Must File Form I-129F, Petition for Alien Fiancee with USCIS

The petition must include evidence to establish that:

Tuan is a US citizen;

He and Linh have met within the two-year period preceding the filing of the petition;

They have a bona fide intention to marry; and

They are legally able and willing to marry within 90 days of Linh’s arrival in the US.

The filing fee for the Form I-129F, Petition for Alien Fiancee is currently $340.

Processing times vary depending on which office your petition is processed. The California Service Center is currently processing Form I-129F, Petition for Alien Fiancee in about five months. Once the petition is approved, it is eventually forwarded to the U.S. Embassy, Hồ Chí Minh City for the Fiancee K1 Visa interview.

Step 2: Linh Must Prepare For and Pass The Fiancee K1 Visa Interview at the US Embassy

Once the petition is approved and eventually forwarded to the U.S. Embassy, Linh must:

Usually this step can be completed within 2-3 months or less as long as the applicant is prepared for the interview and eligible.

Step 3: Linh Files the Application to Adjust Status

After Linh enters on her Fiancee K1 Visa and the couple gets married, Linh will file the I-485, Application to Adjust Status.

The I-485 Application must include evidence to establish that:

Tuan and Linh entered into a bona fide marriage;

Linh entered the US lawfully;

Linh is not a danger to society;

Linh will not become a public burden; and

A variety of additional evidence showing Linh is otherwise admissible.

The current filing fees for the I-485 is $1,070.

Around 1-2 months after filing the application with the Chicago Lockbox, Linh will be scheduled for a biometrics appointment (fingerprinting for background check). Presently, in Los Angeles, adjustment interviews are being scheduled between 5-6 months of filing. The main purpose of the interview is for the USCIS officer to determine whether Tuan and Linh are in a bona fide marriage and whether Linh is otherwise admissible as a permanent resident. If the officer is satisfied, Linh will obtain her conditional permanent resident card. Sometimes the interview requirement is waived.

I also explain to Tuan that since their marriage will be less than two years old at the time he petitions her, her permanent residency will be conditional. This means that her permanent residency will expire unless they jointly file a Form I-751, Petition to Remove the Conditions of Residence within the 90-day period prior to her residency expiring. In this petition, they will have to prove to USCIS that they are still in a bona fide marriage. Once approved, the conditions will be removed from Linh’s permanent residency.

Disclaimer. The above fictional story is intended only to give you a general idea of the topic. It is NOT intended to be legal advice nor does it cover all the specific detailed requirements and procedures. Everyone’s goals and situations are unique as they apply to the law and they all cannot be covered in a simple writing such as this. Please consult an experienced immigration attorney to determine which method is best for your specific circumstances and goals.

This bulletin summarizes the availability of immigrant numbers during January. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by December 11th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored

All Charge -ability Areas Except Those Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

F1

08DEC06

08DEC06

08DEC06

22SEP93

01JUL01

F2A

08SEP13

08SEP13

08SEP13

01SEP13

08SEP13

F2B

01JUN06

01JUN06

01JUN06

01APR94

01MAY03

F3

15APR03

15APR03

15APR03

01JUN93

01FEB93

F4

01OCT01

01OCT01

01OCT01

01NOV96

01JUL90

*NOTE: For January, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01SEP13. F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 01SEP13 and earlier than 08SEP13. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

2nd

C

08DEC08

15NOV04

C

C

3rd

01APR12

01APR12

01SEP03

01APR12

15FEB07

Other Workers

01APR12

01APR12

01SEP03

01APR12

15FEB07

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C

C

C

C

C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF JANUARY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2014 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For January, immigrant numbers in the DV category are available to qualified DV-2014 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA

19,400

Except: Egypt 11,700
Ethiopia 13,000
Nigeria 8,000

ASIA

3,000

EUROPE

13,200

NORTH AMERICA (BAHAMAS)

6

OCEANIA

550

SOUTH AMERICA, and the CARIBBEAN

700

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2014 program ends as of September 30, 2014. DV visas may not be issued to DV-2014 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2014 principals are only entitled to derivative DV status until September 30, 2014. DV visa availability through the very end of FY-2014 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN FEBRUARY

For February, immigrant numbers in the DV category are available to qualified DV-2014 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

This Visa Bulletin allows applicants in the numerically controlled immigrant visa categories to follow the movement of the monthly cut-off dates. The information is also available on-line at www.travel.state.gov. The cut-off dates are used to determine which applicants may be entitled to either: 1) be scheduled for a formal visa interview if processing their case overseas at an Embassy or Consulate, or 2) file an adjustment of status application if they are already in the United States and eligible to have their case processed at a USCIS Office.

All readers should be aware that any changes of address for applicants processing their case overseas should always be reported to the National Visa Center. It is essential that the National Visa Center have the correct address so that information regarding the processing of the case at an overseas post may be sent to the applicant.

When contacting the National Visa Center (NVC) directly about an immigrant visa application case, always include the following information:

Is the foreign prospective employee qualified to perform the duties of the H1b job.

1. H1b Visa Requirements for a “Specialty Occupation”

Immigration law defines the term “specialty occupation” as an occupation that requires:

theoretical and practical application of a body of highly specialized knowledge, and

attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The term “specialty occupation” is further defined under the H1b visa requirements as:

An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The occupation must require a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Put another way, a “specialty occupation” under the H1b visa requirements must meet one of the following criteria:

A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a bachelor’s degree;

The employer normally requires a bachelor’s degree or its equivalent for the position; or

The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Please note that the term “degree” in the above H1b visa requirements means not just any bachelor’s or higher degree, but one in a specific specialty that is directly related to the H1b job.

To determine whether a particular job qualifies as a specialty occupation under the H1b visa requirements, USCIS does not simply rely on a position’s title. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors to be considered. USCIS must examine the ultimate employment of the foreign national employee, and determine whether the position qualifies as a specialty occupation. Cf: Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer’s self-imposed standards. The key issue is whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty as the minimum for entry into the occupation.

Is the foreign national qualified to perform the duties of the job under the H1b visa requirements?

To prove that a foreign prospective employee is qualified to perform the duties of a specialty occupation, the petitioning employer must establish that the employee meet one of the following H1b requirements:

Hold a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;

Hold a foreign degree determined to be equivalent to a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;

Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

As can be seen, the H1b visa requirements are quite complex when it comes to analyzing the job offer as the qualifications of the prospective foreign employee.

1. This visa bulletin summarizes the availability of immigrant numbers during November. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by October 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored

All Charge -ability Areas Except Those Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

F1

22OCT06

22OCT06

22OCT06

22SEP93

01JUL01

F2A

08SEP13

08SEP13

08SEP13

01SEP13

08SEP13

F2B

22MAR06

22MAR06

22MAR06

01APR94

01MAR03

F3

08FEB03

08FEB03

08FEB03

01JUN93

08JAN93

F4

22AUG01

22AUG01

22AUG01

22OCT96

22APR90

*NOTE: For November, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01SEP13. F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 01SEP13 and earlier than 08SEP13. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

2nd

C

08OCT08

15JUN08

C

C

3rd

01OCT10

01OCT10

22SEP03

01OCT10

15DEC06

Other Workers

01OCT10

01OCT10

22SEP03

01OCT10

15DEC06

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C

C

C

C

C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF NOVEMBER

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2014 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2014 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA

13,000

Except: Egypt 7,300
Ethiopia 7,300
Nigeria 7,500

ASIA

2,500

EUROPE

9,800

NORTH AMERICA (BAHAMAS)

4

OCEANIA

375

SOUTH AMERICA, and the CARIBBEAN

600

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2014 program ends as of September 30, 2014. DV visas may not be issued to DV-2014 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2014 principals are only entitled to derivative DV status until September 30, 2014. DV visa availability through the very end of FY-2014 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANKCUT-OFFS WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2014 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA

17,900

Except: Egypt 9,050
Ethiopia 11,000
Nigeria 8,000

ASIA

2,650

EUROPE

12,500

NORTH AMERICA (BAHAMAS)

4

OCEANIA

450

SOUTH AMERICA, and the CARIBBEAN

675

D. VISA AVAILABILITY

It is important to remember that the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

When applicants fail to appear or overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the unused numbers that had originally been allocated for their case are returned at the end of their interview month to the “pool” of numbers available for allocation in subsequent months to other applicants being reported for their “first time” interview.

EMPLOYMENT-based Third Preference:

China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide Third preference cut-off date in May 2013. The continued lack of demand has allowed the “otherwise unused” numbers available under that limit to be provided for use in the China Employment Third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China Third preference date for November. This is the same action which has been possible for the Other Worker category in other “oversubscribed” countries such as India and Mexico. A sudden increase in demand for China Employment Third preference visas could require corrective action in the China Other Worker cut-off date at any time.

In order for your spouse to get a green card through marriage, you must be either a U.S. citizen or green card holder.

How to Obtain A Green Card Through Marriage For Your Spouse

As a citizen or lawful permanent resident of the United States, you may help your spouse become a lawful permanent resident of the United States by obtaining a green card through marriage.

You begin the process of obtaining a green card through marriage for your spouse by filing Form I-130, Petition for Alien Relative. This form establishes the marital relationship that exists between you and your spouse. The form is available at www.uscis.gov. Sometimes the I-130 can be filed together with an application for permanent residence (Form I-485, Application to Register Permanent Residence or Adjust Status). This is discussed below.

In order to obtain green card through marriage for your spouse, you must show that you are a U.S. citizen or lawful permanent resident and evidence relating to the bona fides of your marriage.

Filing a Form I-130 and proving your marital relationship gives your spouse a place in line with others waiting to immigrate from the same country or region based on the same type of relationship. When your spouse reaches the front of the line, he or she may be eligible to immigrate after passing the required background checks and meeting requirements for a green card through marriage.

For example: If you are a permanent resident and file a petition for your spouse, if USCIS approves it, your petition gives her a place in line with spouses from the same country category who are also married to permanent residents.

Your spouse’s place in line will be based on the date you file your petition. So there is an advantage to beginning the process of obtaining a green card through marriage for your spouse as soon as possible. There is no waiting period for spouses of U.S. citizens.

How Long Will It Take Before My Spouse Can Immigrate?

The law gives special consideration to spouses of U.S. citizens.

There is no waiting list.

The U.S. Department of State will invite them to apply for an immigrant visa as soon as USCIS approves your I-130 petition.

If your petition has been approved, and your spouse is currently in the United States after making a legal entry (and

they meet certain other requirements), she/he may be able to file an

application with USCIS to adjust to permanent resident status, i.e., apply for her/his green card through marriage in the U.S .

For spouses of permanent residents (green card holders), the combination of high demand and the limits set by law on how many people can immigrate each year means your spouse may have to wait several years “in line” while petitions that were filed before his/hers are processed. When your spouse reaches the “front of the line,” the U.S. Department of State contacts your spouse and invites him or her to apply for an immigrant visa. Current wait times for visa categories including green card through marriage are available under “Visa Bulletin” on the State Department’s website at www.travel.state.gov/visa.

What If I Began The Process for a Green Card Through Marriage When I was a Permanent Resident, but I am now a U.S. citizen?

If you become a U.S. citizen while your spouse is waiting for a visa, you can upgrade your spouse’s visa classification and advance the processing of that petition by notifying the appropriate agency of your naturalization. When you are a U.S. citizen, your husband or wife will have visas immediately available to them.

Are you in an unlimited or limited visa category?

Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available. . Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen. Because visas are always available to “immediate relatives”, this category is not listed in the Visa Bulletin nor is priority date relevant in most situations.

The U.S. Department of State is the agency that distributes visa numbers and shows them in the Visa Bulletin. Family sponsored preference categories are limited to 226,000 per year and employment based preference visas are limited to 140,000 per year. In addition, there are limits to the percentage of visas that can be allotted to each country.

Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date as shown in the Visa Bulletin. The priority date (explained below) is used to determine an individual’s place in line in the visa queue. When the priority date becomes current, the individual will be eligible to apply for an immigrant visa as seen in the Visa Bulletin.

Your priority date can be found on Form I-797, Notice of Action, for the petition filed for you. The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on:

The demand for and supply of immigrant visa numbers

The per country visa limitations

The number of visas allocated for your particular preference category

Priority Date for Family Sponsored Preference Cases

For family sponsored immigration, the priority date is the date that the petition is properly filed with U.S. Citizenship and Immigration Services (USCIS). A properly filed petition contains the required signature(s), filing fee, and any supporting documentation required at the time of filing.

Priority Date for Employment Based Preference Cases

The priority date for an immigrant petition that is based on employment is either:

The date the petition was properly filed with USCIS, or

The date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required)

Pending Employment-Based Form I-485 Inventory

A visa must be available before a person can obtain an employment-based green card. Currently, about 234,000 people have applied for employment-based adjustment of status (green card) in the United States and are waiting for a visa. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. How long you wait for a visa depends on your priority date, preference category, and the country your visa will be charged to (usually your country of birth).

U.S. Department of State Visa Bulletin

The U.S. Department of State publishes a monthly report of visa availability referred to as the “Visa Bulletin.” The monthly Visa Bulletin serves as a guide for issuing visas at U.S. consulates and embassies. USCIS also uses the Visa Bulletin to determine whether a Form I-485, Application to Register Permanent Residence or Adjust Status, may be accepted or adjudicated, because a visa must be available both at the time a person files Form I-485 and at the time of the final decision on the application.

Check Your Place (Priority Date) in the Visa Queue in the Visa Bulletin

The Visa Bulletin allows individuals to check their place, priority date, in the immigrant visa queue. The Visa Bulletin provides the cut-off dates for the different categories and countries for family, employment and diversity visas based on the priority date.

When Visa Numbers Are Available as Shown in the Visa Bulletin

If demand is less than supply in a given preference visa category and country of birth (“or country of visa chargeability”), then immigrant visas are current. Visas are available when the chart designation is “C” for current in the Visa Bulletin.

This means that immigrant visa numbers are available for all qualified overseas applicants and adjustment applicants in that particular visa preference category and country of birth.

When Visa Numbers Are Not Available

If the demand is more than supply for a particular visa category or foreign state, and cannot be satisfied within the allowable limits, the Visa Office considers the preference visa category or foreign state “oversubscribed” and must impose a cut-off date.

In this instance, only overseas and adjustment applicants who have a priority date earlier than the date listed in the Visa Bulletin may be given an immigrant visa number. A visa is available to an individual, therefore, if his/her priority date is earlier than the date listed for that visa category and country in the Visa Bulletin. Visas are unavailable when the chart designation is “U” for unavailable.

For example, if a date of 15Sept02 is shown for individuals from Philippines in the Family 1st preference category in the Visa Bulletin, visas are currently available for individuals with a priority date earlier than September 15, 2002.

Visa Retrogression

Sometimes, a priority date that is current one month will not be current the next month as seen in the Visa Bulletin. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression most often occurs when the annual limit has been reached. When the new fiscal year begins on October 1, a new supply of visa numbers is available and usually, but not always, brings back the dates to where they were before retrogression.

Cross-Chargeability

Employment based cases are amenable to visa cross-chargeability provisions for principal applicants (that may have a visa retrogressed priority date), who have spouses from a country for which a visa cut-off date may provide a visa allocation as seen in the Visa Bulletin.

EB2 Advanced Degree or Foreign Equivalent

[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree for EB2 classification. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

An intending immigrant can satisfy the advanced degree requirement for EB2 classification by holding either of the following:

a U.S. master’s degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or

a U.S. bachelor’s degree, or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus five years of progressive, post-degree work experience.

EB2 Position

Mere possession of an advanced degree is not sufficient for establishing an intending immigrant’s eligibility for EB-2 classification. the petitioner must demonstrate that:

the EB2 position certified in the underlying labor certification (PERM) application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent; and ,

the beneficiary not only had the advanced degree or its equivalent on the date that the labor certification (PERM) application was filed, but also met all of the requirements needed for entry into the proffered EB2 position.

The petitioner must demonstrate that the EB2 position, and the industry as a whole, normally requires that the EB2 position be filled by an individual holding an advanced degree. In this regard, the key factors are not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that a combination of foreign degrees or credentials:

Meets the minimum education requirements for the position in the individual labor certification approved by the Department of Labor; and,

The minimum requirements for the EB2 position in the labor certification meet the definition of an advanced degree at 8 CFR 204.5(k)(2) .

Click on this link to learn more about the Employment Based Green Card Process.

Call us for a FREE consultation on the EB2 visa category for those holding advanced degrees or its equivalent.

A U.S. employer that wants to fill a job vacancy with a foreign worker can use the immigration laws and procedures to qualify the foreign worker for an employment based green card. In most instances, the foreign worker is already working for the U.S. employer with a temporary nonimmigrant work visa such as the H1b, L, E, or O visa but the employer now wishes to place the foreign worker in the position on a permanent or indefinite basis rather than for only a temporary period.

The immigration laws provide for several employment-based immigrant visa classifications. Most of the classifications have built-in protections for the U.S. labor market. Although there are exceptions, generally, the process for obtaining employment based green card is composed of three phases: the labor certification, the visa petition, and the application to become a permanent resident.

The first step involved in the employment based green card process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the U.S. Department of Labor (DOL). Initially, a “labor certification” is a certification by DOL that a shortage of qualified U.S. workers exists to fill the position held by the sponsored intending immigrant employee, and that the company is paying or will pay the employee the “prevailing wage.” This involves identifying and evaluating the job requirements and job duties. Since DOL will ultimately be making a decision as to whether there is a shortage of U.S. workers, it must be decided whether there is a credible case to pursue. Assuming that a decision is made to move forward, a prevailing wage request is made to DOL based on the duties and requirements. Once the prevailing wage has been obtained, the next step is to recruit.

Under the PERM regulations, there are two categories of recruitment: (1) Professional; and (2) Non-professional. Assuming that the position is “professional,” the employer will be required to place two Sunday newspaper ads, place a job order with the state workforce agency, and make three other recruitment efforts out of a list of 10: (1) job fair; (2) employer’s website; (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organization; (6) private employment firm; (7) employee referral program with incentives; (8) campus placement office; (9) local and ethnic newspaper; and (10) radio and television advertisement. If the occupation is non-professional, the recruitment effort only needs to be two newspaper advertisements and a job order with the state workforce agency.

Our experience has been that, under normal circumstances, the labor certification is granted after review by DOL, although there may be an interim step called an “audit” where DOL might request more documentation or information or might require additional supervised recruitment. DOL might deny the application, as well. This concludes Step 1 of the Employment Based Green Card Process.

Upon receiving an approved labor certification in Step 1 of the Employment Based Green Card process, an I-140 visa petition must be prepared in Step 2 of the Employment Based Green Card process, which will be signed by the employer and submitted to U.S. Citizenship and Immigration Services along with the approved labor certification. At this time, the employer must submit documentation establishing the company’s ability to pay the employee’s proffered wages. In addition, documentation must be submitted verifying that the intending immigrant employee meets all of the minimum requirements listed in the labor certification. This concludes Step 2 of the Employment Based Green Card Process.

Step 3 of the Employment Based Green Card Process: Application to Become a Lawful Permanent Resident

The last step of the employment based green card process consists of the employer providing a letter from the company verifying the foreign worker’s employment, and, on occasion, a notarized job offer form. Although the employer’s involvement at this stage is minimal, we will be spending much time assisting the employee in gathering required documentation—such as birth certificates and marriage certificates, etc.—to complete this rather involved stage of the process. At the end of this step, the employee will be granted permanent residence, and, shortly thereafter, be issued a “green card” as evidence of permanent residence. This concludes Step 3 of the Employment Based Green Card Process.

Please be advised that the foregoing gives only a brief overview of the rather detailed and complicated employment based green card process.

In most instances, a foreign national seeking to obtain U.S. lawful permanent residence through employment must be the beneficiary of an approved application for permanent employment certification or PERM/Labor Certification. The PERM/Labor Certification application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are immediately available to accept the offered position at the prevailing (or average) wage for the area of intended employment.

On December 27, 2004, the procedures for employers to sponsor foreign nationals for employment-based immigration changed as the U.S. Department of Labor (DOL) published the final regulation for the Program Electronic Review Management (PERM) system to streamline the labor certification application. This procedure, which took effect on March 28, 2005, includes the following process for filing a PERM/labor certification application.

Requirements Under the PERM/Labor Certification Process

The U.S. employer is currently required to obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC). NPWC will make PWD determinations based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located.

After obtaining a PWD, the employer is required to post a printed, internal job notice for at least 10 consecutive business days. This notice must be posted between 180 and 30 days before filing the PERM/labor certification application. In addition to the job posting, the employer must use its standard in-house electronic and printed methods for advertising the position.

Other recruitment efforts that must be made before filing the PERM/labor certification application include placing a job order with the State Workforce Agency (SWA) and placing two Sunday newspaper advertisements. The SWA job order must be placed for a period of 30 days. The Sunday newspaper advertisements must be published in a newspaper of general circulation in the area of intended employment. The advertisements must be printed within 180 days, but no less than 30 days before filing the PERM/labor certification.

Additional recruitment requirements apply to employers seeking to hire someone in a professional occupation, which is generally one that has been listed by the DOL. If the occupation qualifies as professional, the employer must undertake three recruitment steps in addition to the steps outlined above. The three steps must be chosen from the list provided in the regulations. The following venues are permissible for additional recruitment for professional positions: (a) job fairs; (b) the employer’s website; (c) job search website other than the employer’s; (d) on-campus recruiting; (e) professional or trade organizations (i.e., placing an advertisement in their newsletter or journal); (f) private employment firms that conduct recruitment; (g) an employee referral program that provides incentives; (h) campus placement offices; (i) advertisement in local and ethnic newspapers; (j) radio and television advertisements; and (k) webpage advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the PERM/labor certification application; however, only one of the three steps can take place within 30 days of filing the PERM/labor certification.

In order to prepare the advertisements, the employer must take care to draft an accurate description of the job as well as the skills, education, and experience required in order to satisfactorily perform the duties. The advertised requirements for the position must meet two criteria. First, the skills, education, and/or experience must be the actual skills, education, and/or experience required to satisfactorily perform the duties of the position. That is, we cannot require that applicants possess certain skills or experience simply because the beneficiary of the PERM/labor certification application possesses those skills or experience.

DOL has established guidelines for different occupational categories and these guidelines determine the amount of education and experience that can be required for a given occupation. Requirements that exceed the range established by DOL are considered “unduly restrictive,” meaning that the sole function of these requirements is to reject U.S. workers who are otherwise qualified for the position. An employer, however, may require experience and education in excess of the range established by DOL by showing “business necessity,” which means that the requirements bear a reasonable relationship to the occupation in the context of the employer’s business, and are essential to perform, in a reasonable manner, the job duties as described by the employer.

Second, the beneficiary of the PERM/labor certification application must have possessed the skills, education, and/or experience being required prior to joining the employer. The employer, however, can require experience or skills obtained on the job if the employer can show that the position in which the skills and experience were acquired is sufficiently different from the position being applied for in the PERM/labor certification application. A position is “sufficiently different” if the job duties are at least 50 percent different. An employer may also be able to justify “on the job experience” if it can be demonstrate that it is infeasible to train a U.S. worker.

After the advertisements and job orders are placed, the employer will receive résumés from interested applicants. The employer must review those resumes to determine if there are any qualified and available U.S. workers who are willing to accept employment at the prevailing wage. Upon completion of this resume review and evaluation, and before submitting the PERM/labor certification application, the employer must prepare a recruitment report for its internal files. The report must document the recruitment steps undertaken and the results achieved. It must include the number of individuals hired and if applicable, the number of U.S. workers rejected, summarizing the lawful job-related reasons for their rejections. It is lawful to reject a U.S. worker for the position if he or she does not meet the employer’s stated minimum requirements. It is not lawful to reject a U.S. worker if he or she can obtain the required skill(s) after a reasonable period of on-the-job training. The employer must sign the recruitment report and retain all supporting documentation, including evidence of the advertisements and the resumes received in response to the recruitment effort, for a five-year period starting from the date of filing the PERM/labor certification application.

Submission of the PERM/Labor Certification

If the employer determines that there are no qualified and available U.S. workers for the offered position, then the recruitment has been completed and the PERM/Labor Certification Application, Form ETA-9089, can be submitted electronically. If the PERM/Labor Certification application is not selected for an audit, DOL will certify (approve) it after more than six months from the date of filing. If the PERM/Labor Certification application is selected for audit, the application is likely to be approved after over one and a half years from the submission of the audit response. These are approximate time frames based on recent trends, and they may vary from year to year. A certified PERM/Labor Certification application must be immediately signed by the employer who will then submit the certified and signed application along with the immigrant petition to U.S. Citizenship and Immigration Services (USCIS) to sponsor the foreign national for an immigrant visa.

If a PERM/Labor Certification application is selected for an audit, the employer will receive an audit letter from the certifying officer (CO) of DOL asking the employer to provide certain documentation and specifying a reply date of thirty days from the date of the audit letter. If the reply date is not met or if the CO does not provide the employer with an extension, then the PERM/Labor Certification application will be denied. An audit can be triggered randomly or based on information provided in the employer’s PERM/Labor Certification application. Please also note that a PERM/Labor Certification application may be selected for Supervised Recruitment. This would require the employer to again conduct recruitment under the close supervision of the DOL. All resumes from US worker applicants will be forwarded to the DOL, which will then refer them to the employer.

After PERM/Labor Certification

Keep in mind that if the PERM/Labor Certification application is certified and the employer wishes to proceed to the next step, filing the employment-based immigrant petition (Form I-140) with USCIS, the beneficiary will be required to provide documentation to establish that he or she met the advertised requirements for the position on the date that the PERM/Labor Certification application was filed. Accordingly, the beneficiary of the PERM/Labor Certification application will be required to provide copies of college degree(s) with transcripts and employment confirmation letters that discuss the beneficiary’s role within the company and the skills used in carrying out specific duties. It is important to note that the Form I-140 petition must be filed within 180 days from the date of the PERM application certification. There are no exceptions to this 180 day deadline, unless a new I-140 petition is being filed after the previous I-140 was filed timely within 180 days. This may happen when there is a new successor in interest entity after a corporate reorganization or where a new petition is being filed in a new visa category.

Christine entered the U.S. from her home country on a tourist visa with her husband and children. After a few months of touring the U.S. and visiting relatives, her cousin informed Christine that the accounting firm he worked for was in need of another skilled accountant (accountants are generally held to be an H1b specialty occupation).

Her cousin thought she would be a good fit since Christine had a Bachelor’s degree in accounting and his employer needed someone with her credentials and was unable to fill the position.

Excited about the prospect, Christine was interviewed by the accounting firm. The firm really liked Christine and her qualifications for the accountant position and told her they would would be willing to file an H1b petition on her behalf.

First, Attorney Avelino informed Christine that it was good that she did not try and find employment until at least 60 days had past from her date of entry as a tourist. Because if she would have tried to find employment earlier, immigration might presume she had a hidden preconceived intent to find work when she was supposed to be entering the U.S. for tourist purposes only. Such actions could be grounds for denial of any change of status and revocation of her tourist visa.

Attorney Avelino then advised that the case would likely be approved since the accounting firm has a bona fide need for a professional accountant and that Christine had the required qualifications for the job. Furthermore, the accounting firm was willing to file the H1b I-129, Petition for a Nonimmigrant Worker and abide by all the regulations set forth by the U.S. Department of Labor and USCIS. In addition, Christine’s spouse and children could concurrently file I-539, Application to Change Nonimmigrant Status from B-2 to H4.

A couple months later, the petition was approved and Christine’s status changed from B-2 Tourist to H1b temporary worker. Her family’s status changed to H4 dependent status. Christine can now legally work for the accounting firm under H1b status.

If Christine and her employer later decide they would like her to permanently work for the accounting firm, they can begin the employment based green card process (permanent residence) for her and her family.

The H1B process involves two steps.

First, the employer submits a labor condition application (LCA) to the U.S. Department of Labor (DOL) for certification. Second, the employer files a nonimmigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) to obtain H1B classification for the alien.

If the alien is already in the United States in another status, an application for a change of status can be made simultaneously with the petition. If the alien is in the United States in H1B status working for another employer, a change of employer/extension of stay application may be filed simultaneously with the petition.

Step 1: Filing the LCA

By filing the LCA with DOL, the employer is attesting to the following:

That for the entire period of authorized employment (typically, three years), the company will pay all H1B alien(s) who have similar experience and qualifications for the specific position set forth on the LCA, at least the higher of:

the actual wage rate paid by the employer to all other individuals with similar experience and qualifications to the H1B nonimmigrant for the specific position at the work site; or

the prevailing wage level for that specific occupational classification paid by all employers in the geographic area of intended employment. We will assist in obtaining a prevailing wage for the position, either through DOL’s online wage listings, a published wage survey, or the State Workforce Agency (SWA). One advantage to obtaining a SWA determination is that DOL will accept such a determination as per se correct and will not investigate a prevailing wage complaint.

The higher of the actual or prevailing wage is the “required wage” that must be paid to the alien. Note that if the employee is not performing work and is in a nonproductive status due to a decision by the employer (e.g., for lack of work), the employer must continue to pay the employee the required wage. Unpaid leave is permissible if the leave is unrelated to employment (e.g., maternity or family leave, etc.), and U.S. workers would not be paid under similar circumstances.

That for the entire period of authorized employment, the employment of the H1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.

That on the date the LCA is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.

That on or within 30 days before the date of the filing the LCA, notice of the application was posted for 10 days in two conspicuous places at the worksite (e.g., where other federal or state notices are posted). Electronic posting (such as e-mail or intranet) is permissible where all worksite employees have access to the posting. If the H1B worker will be working at a third party location, posting will have to be made at that location. Please call us if this is the case. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.

In addition, a copy of the LCA certified by DOL must be provided directly to the alien prior to beginning the H1B employment.

The LCA procedure is primarily complaint‑driven—an LCA investigation will normally occur only if a complaint is filed. In that case, DOL will investigate, and in the event of an LCA violation, DOL may: (1) impose a fine of $1,000 to $35,000 per violation; (2) bar the employer from obtaining future visas for a period of at least one year or up to three years; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signatory to penalties for perjury, including fines and even incarceration.

If your company has onsite contract workers who are employed by an “H1B dependent” employer (described below), the employer of such workers may ask whether your company has laid off similarly employed U.S. workers 90 days prior to the worker being at your work site and whether you do not intend to lay off U.S. workers within 90 days after the worker is at your site. Thus, layoffs at your company may affect your ability to keep some contract employees at your work site.

Benefits Obligations

Benefits and eligibility for benefits (e.g., bonuses, stock options, vacations, insurance, retirement plans) must be offered to H1B nonimmigrant workers on the same basis as the employer offers to U.S. workers. H1B workers cannot be denied benefits because they are “temporary employees.” Other distinctions, not based on H1B status, are allowed as long as U.S. workers are treated in the same manner—e.g., full-time vs. part-time employees or professional vs. non–professional staff. Multinational employers may leave H1B workers on their “home country” benefits plan under certain circumstances.

H1B Dependent Employer Requirements

An “H1B dependent” employer is one that has a high percentage of H1B employees. Please let us know immediately if 15 percent or more of your workforce are H1B workers. Additional requirements for H1B dependent employers include, under certain circumstances, attempted recruitment of U.S. workers, a prohibition against displacement of a U.S. worker by an H1B worker, and a prohibition against placement of an H1B worker at another employer without first asking about the other employer’s possible displacement of U.S. workers.

Satisfying Documentation Requirements

Within one working day of the filing of the LCA, your company must make certain documentation regarding the LCA available for public inspection by any person. We will prepare an LCA “Public Access” file for the company. This file must be retained for one year beyond the validity period of the LCA. The public access file should contain:

Completed LCA (Form ETA 9035) and cover pages (Form ETA 9035CP).

Wage Rate, i.e., the wage paid to the foreign national(s) utilizing the LCA.

Actual Wage Memorandum. This memorandum must summarize the system used to set the wage the employer has paid or will pay its workers in the same occupation.

Copy of the documentation the employer used to determine the “prevailing wage.” This should consist of a copy of the SWA Prevailing Wage determination or the survey used to determine the prevailing wage.

Evidence of posting or notification to bargaining representative. We will prepare a Posting Notice for a company representative to complete to satisfy the posting requirement.

Summary of benefits offered to U.S. workers in same occupational class. Where there are different formulas for calculating benefits, the employer must also include a statement explaining such differentiation.

In the event of a corporate reorganization (e.g., merger, acquisition, etc.), the public access file must also include:

Sworn statement by responsible official that the new entity accepts all obligations, liabilities, and undertakings under LCAs filed by predecessor.

List of each affected LCA and date of certification.

Actual wage memorandum of new entity.

EIN of new entity.

If the employer is a “single employer” as that term is defined by the Internal Revenue Code, the public access file must also include the following:

List of entities included as part of the single employer in making H1B dependency determination.

In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of a complaint. These records include payroll records for a period of three years from the date of the creation of the records, a description of the company’s benefits plan, dependency calculation records, records of hours worked by hourly and part-time H1B workers, prevailing and actual wage sources, information regarding working conditions, and copies of USCIS petitions. There are additional record-keeping requirements for H1B dependent employers.

The H1B Petition

Once the LCA has been certified, we will prepare the H1B petition for signature by the company representative. The H1B petition may then be filed with USCIS. In each U.S. fiscal year beginning on October 1, H1B petitions may only be approved for 65,000 new H1B workers, with an additional 20,000 available for individuals who have earned a master’s degree or higher from a U.S. university. Once the “caps” of 65,000, or the additional 20,000, have been reached, USCIS will not approve petitions for a start date before the next October 1. This limit only applies to individuals who have not been granted or held H1B classification in the previous 12 months.

The USCIS filing fee for the petition is at the time of this writing $325.00. In addition, USCIS imposes a $1,500 fee that will go to a “training fund” for U.S. workers. (The fee is $750 for employers with 25 or fewer employees. An employer that is a primary, secondary, or higher educational institution or a related nonprofit entity or nonprofit research organization is exempt from this fee. Please let us know if any of these apply to your company.) The alien may not pay this worker training fee. Finally, USCIS imposes an additional fee of $500 as an “anti-fraud” fee on the first H1B filing by an employer on behalf of a given employee. The H1B petition will consist of Forms I-129H, I-129W, a company letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the company’s ability to pay the offered wage. “Premium” (two-week) processing is available for an additional USCIS filing fee presently at the time of this writing at $1,225 .

H1B nonimmigrant visa classification has two major requirements: (1) that the position to be filled is a “specialty occupation,” i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. bachelor’s degree or higher in a specialized field is the minimum requirement for entry into the occupation; and (2) that the alien possesses a U.S. bachelor’s degree or higher in the specialized field. (Note that if the individual does not have a degree, or possesses a foreign degree, an education and/or experience evaluation will be required to determine equivalence to a U.S. degree.)

Where the petition requests a change of employer for an individual already in valid H1B classification, the employee may begin working for the new employer once a certified LCA is in place and upon filing of the new employer’s H1B petition with USCIS if the following conditions are met: (a) the employee was lawfully admitted into the United States; (b) the alien has not worked without authorization since last entry; and (c) the “non-frivolous” petition is filed before expiration of the employee’s authorized stay.

For petitions requesting a change of status from another nonimmigrant classification, the company may begin to employ the alien in H1B classification once the petition is approved and becomes effective. If the alien is outside the United States, he or she will need to obtain an H1B visa at a U.S. embassy or consular post abroad in order the enter the United States. Similarly, if the alien is in the United States but then travels internationally, he or she will likely need to obtain an H1B visa prior to re-entering the United States. Please contact us if you would like assistance with the H1B visa application. Please note that Canadians granted H1B status do not require H1B visas for entry to the United States. However, Canadian with H1B status should always carry the original I-94 found at the bottom of the original H1B approval notice.

The employer must begin to pay an H1B employee when he or she “enters into employment,” i.e., when he or she is available to work and comes under control of employer. In any event, the employee must be placed on the payroll no later than 30 days after he or she enters the United States under the approved H1B, or if already in the United States, 60 days after the start date on the H1B petition or the date of the change of status by USCIS, whichever is later.

Under current regulations, in the event the company dismisses the alien from employment before the end of the period of authorized admission, the company is liable for the reasonable costs of return transportation to the alien’s residence abroad.

The LCA, H1B petition, and prevailing wage information are valid for up to three years. The company should docket six months prior to the expiration of the H1B petition to decide if it would like to obtain an extension of the LCA and H1B petition for an additional three years. (We will also docket this date.) If the company plans to continue to employ the H1B employee beyond the initial three-year period, the company should arrange to file an extension of the H1B petition at that time to ensure that the extension is approved prior to the expiration of the initial petition.